Ahmed (Migration)

[2023] AATA 1715

Ahmed (Migration) [2023] AATA 1715 (31 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Afaq Ahmed
Mrs Iraj Ashfaq
Mr Muhammad Ali Ahmed Khan

CASE NUMBER:  2012554

HOME AFFAIRS REFERENCE(S):          BCC2018/3416765

MEMBER:Noelle Hossen

DATE:31 May 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 887 (Skilled - Regional) visas:

·Public Interest Criterion 4020 for the purposes of cl c 887.223 of Schedule 2 to the Regulations

·The Tribunal finds that as the primary applicant meets the criteria for the grant of the visa that the secondary applicants also meet the criteria for the grant of the visa.

Statement made on 31 May 2023 at 1:41pm

CATCHWORDS

MIGRATION – Skilled (Residence) (Class VB) visa Subclass 887 visa – Public Interest Criterion 4020 – false or misleading information – applicant has provided inconsistent information as a result of the trading difficulties – taxation difficulties were out of his control – applicant’s claim to have worked full time for at least 12 months in a regional area – secondary criteria for the grant of the visa – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, cl 887.223

CASES

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274

Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 July 2020 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 9 September 2018. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl c 887.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant caused to be given information that was false and misleading in a material particular and did not meet Public Interest Criterion (PIC) 4020.

3. The applicants appeared before the Tribunal on the 31 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Tristan Rainey  

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl c 887.223 for the grant of the visa. Broadly speaking, this requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

6. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

   Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

7. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

8. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

9. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

10. In this case the delegate found that Mr. Ahmed had provided the Department with information that was false and misleading in a material because the documents that he provided to the Department to apply for his Skilled VB 887 Regional Visa had the requirement that he worked full time in a Regional area for a total of one year and the documents provided were confusing and contained errors.

11. The delegate summarised the position on page 8 of his Decision as follows:” Concerns were raised in the process of the Department’s verification checks of your employment claims. I find that, although you were given an opportunity to comment, the supporting evidence provided does not adequately addressed all the concerns. I find concerns remain as to whether you were employed and working the hours claimed by Tamworth Radio Cabs and Edwards O’Connor Chartered accountants in a specified Regional area in Australia for a total of at least one year. I find concerns remain regarding the capacity in which you were employed at Tamworth Radio Cabs and Edward O’Connor Chartered Accountants. I find serious concerns remain regarding the differing logos. No evidence has been provided to confirm the existence of the company name of Tamworth Taxis. I find your response and the evidence provided has not outweighed or resolved the concerns raised during the Department’s checks. Given the inconsistencies, I am not satisfied as to the truthfulness of your claim to have been employed with Tamworth Radio Cabs and Edward O’Connor Chartered Accountants in Australia.”

12. The Tribunal has had the benefit of receiving oral evidence from Mr Ahmed and Mr Rainey, as well as written submissions and statutory declarations, that have allowed the Tribunal to fully understand the context behind the major misunderstanding that has occurred at the time of the Delegate’s Decision.

13. Mr Rainey’s oral evidence was that he was the General Manager of Tamworth Radio Cabs and has worked in that capacity for 5 years but has worked for the company for 7 years. He confirmed that the applicant commenced employment in August 2017 and that he did his onboarding in July 2017.He would let the company know that he was available to accept bookings and that he did so at his discretion.

14. He said that he was unaware that the applicant had another job as a trainee accountant. He said that in 2018 there was confusion about the registration of the Business name of Tamworth Radio Cabs Cooperative. They have always been known as Tamworth Cabs as the company has been trading since 1956. They had also registered the name Tamworth Taxis, but it became apparent that the Registration had lapsed and his predecessor did not realise it, allowing a previous set of employees to register the Business name of Tamworth Taxis in February 2018.

15. As a result of the Registration by those individuals the Company sought legal Advice and was told to still use the name Tamworth Taxis and they were involved in litigation to regain control of the trading name. They have been successful but at the time that the applicant worked for them as a bailee to Scott Steele he would be unaware that the company was in the state of flux regarding trade names etc. He said that he has worked hard to ensure that the logos and all the trade names are now consistent across the board. The delegate also queried the use of different telephone numbers on the website of the Taxi company. Mr. Rainey said that they own both numbers, but the website has a number for the call centre to book the taxis. The Tribunal accepts the explanation of Mr. Rainey and it is obvious that the misunderstanding had nothing to do with the applicant.

16. Mr Ahmed confirmed that he has not driven a taxi since December 2018 as he has been employed on a full-time basis as an accountant.

17. The Delegate also queried the address for the ABN registered in the name of the Applicant for a business known as “Big Deals”

18. The applicant stated that he registered the ABN when he was 22 years of age when he first came to study in Australia. He said that from 2016 he lived in Kootingal postcode 2352 and Tamworth2340.

19. He confirmed that he lived in the following Regional Towns as follows:

    2016      Kotingal

    2017      Naminga

    2018      Kootingal

    2019     Tamworth and he is still residing in Tamworth.

    He said that the towns as listed above are close to each other.

20. The applicant stated that he now has 2 children, and he is happily married. He works on a full-time basis as an accountant with a firm called Forsythes in Taxation and was studying for his CPA. He receives $65,000 per year as an income package.

21. The delegate was concerned that the applicant had lodged a tax return for the year ending 2018 and that it did not reflect his earnings for that financial year. The applicant had provided the document to the delegate, so he had not tried to conceal the information. The applicant said that he had lodged BAS statements for that year. The statements did not reflect the fact that he would not declare his real income as he had submitted GST estimates to confirm his actual income and paid the GST to the ATO. He said that he does not know why there was an error and that he had complained to the ATO and that they have provided greater security for his account as he feared that he had not lodged the return and his account had been hacked. He said that the ATO had investigated the issue and found that his TFN security had been hacked and that was why his Tax return had been lodged without his business earnings. His security on his account is still active to date.

22. He said that he would not try to evade his tax liabilities as he had already submitted his BAS statements and was working as a trainee accountant. He would not want to jeopardise his career prospects and his specialty is taxation. He said that this error has caused him immeasurable stress in the last 4 years.

23. The Tribunal accepts the evidence of the applicant as he had provided extensive submissions to support his case.

24. The evidence available to the Tribunal at review indicates that rather than false or misleading information having been provided to the Department, the applicant has provided inconsistent information as a result of the trading difficulties facing his employer. His taxation difficulties were out of his control and he admitted that he did not have a practical knowledge of taxation matters at that time as he was commencing employment as a trainee accountant.

25. Such inconsistent information was not in a material particular, because, with the benefit of understanding from the witnesses and the reasons for the production of inconsistent information , that inconsistent information does not belie the veracity of the applicant’s claim to have worked full time for at least 12 months in a regional area. Therefore the applicant meets PIC 4020(1).

    DECISION

26. The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 887 (Skilled - Regional) visas:

    ·Public Interest Criterion 4020 for the purposes of cl c 887.223 of Schedule 2 to the Regulations

    ·The Tribunal finds that as the primary applicant meets the criteria for the grant of the visa that the secondary applicants also meet the criteria for the grant of the visa.

    Noelle Hossen
    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4020(1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

    (a)the application for the visa; or

    (b)a visa that the applicant held in the period of 12 months before the application was made.

    (2)The Minister is satisfied that during the period:

    (a)starting 3 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

    (2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (2A)The applicant satisfies the Minister as to the applicant’s identity.

    (2B)The Minister is satisfied that during the period:

    (a)starting 10 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

    (2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

    (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

    (a)compelling circumstances that affect the interests of Australia; or

    (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa.

    (5)In this clause:

    information that is false or misleading in a material particular means information that is:

    (a)false or misleading at the time it is given; and

    (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

    …

    Migration Act 1958

    s 5      Interpretation

    (1) In this Act, unless contrary intention appears:

    …

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)purports to have been, but was not, issued in respect of the person; or

    (b)is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)was obtained because of a false or misleading statement, whether or not made knowingly.

    …